SPONSOR: Sen. Townsend & Sen. Delcollo & Rep.

Minor-Brown &
Rep. Griffith & Rep. Longhurst
Sens. Cloutier, Hansen, Lockman, Poore; Reps.
Baumbach, Bentz, Bolden, Brady, Chukwuocha,
Dorsey Walker, Heffernan, Jaques, K. Johnson,
Q. Johnson, Seigfried

DELAWARE STATE SENATE

150th GENERAL ASSEMBLY

SENATE BILL NO. 25

AN ACT TO AMEND TITLE 11, TITLE 16, AND TITLE 30 OF THE DELAWARE CODE RELATING TO DELIVERY
AND SALES OF TOBACCO PRODUCTS.

1 WHEREAS, tobacco remains this nation’s number 1 preventable cause of premature death and disease, killing

2 more than 480,000 Americans, including 1,400 Delawareans annually; and

3 WHEREAS, the Institute of Medicine (“IOM”), one of the most prestigious scientific authorities in the United

4 States, concluded in a March 2015 report, “Public Health Implications of Raising the Minimum Age of Legal Access to

5 Tobacco Products” (“IOM report”), that raising the tobacco sale age to 21 will have a substantial positive impact on public

6 health and save lives through reductions in youth tobacco use initiation; and

7 WHEREAS, the IOM report is based on a thorough literature review and expert panel consensus; and

8 WHEREAS, the IOM report finds that raising the tobacco sale age will do all of the following: significantly reduce

9 the number of adolescents and young adults who start smoking; reduce smoking-caused death; and immediately improve

10 the health of adolescents, young adults, and young mothers who would be deterred from smoking; and

11 WHEREAS, the IOM report further predicts that raising the minimum age for the sale of tobacco products to 21

12 will, over time, do all of the following: reduce the smoking rate by about 12%; reduce smoking-related deaths by 10%,

13 resulting in 223,000 fewer premature deaths, 50,000 fewer deaths from lung cancer, and 4.2 million fewer years of life lost

14 nationwide; and reduce smoking-related health outcomes like low birth weight, pre-term births, and SIDS deaths; and

15 WHEREAS, 95% of adults who smoke started before age 21; and

16 WHEREAS, each day, more than 2,500 Americans try their first cigarette and another 580 become new regular,

17 daily smokers; and

18 WHEREAS, tobacco use is known to cause cancer, heart disease, and respiratory diseases, among other serious

19 health problems; and

20 WHEREAS, exposure to nicotine can have lasting effects on adolescent brain development; and

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21 WHEREAS, the use of electronic smoking devices, which contain unregulated amounts of nicotine, among minors

22 has recently tripled; and

23 WHEREAS, the use of cigars by youth recently surpassed the use of cigarettes; and

24 WHEREAS, the Centers for Disease Control and Prevention estimates that tobacco use costs approximately $170

25 billion, including $532 million for health care costs in Delaware each year, with $95.6 million in costs to Delaware’s

26 Medicaid program.

27 NOW, THEREFORE:

28 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

29 Section 1. Amend § 1115, Title 11 of the Delaware Code by making deletions as shown by strike through and

30 insertions as shown by underline as follows:

31 § 1115. Definitions.

32 (4) "Proof of age" means a driver's license or other government-issued identification with a photograph of the

33 individual affixed thereon that indicates that the individual is 18 21 years old or older.

34 Section 2. Amend § 1116, Title 11 of the Delaware Code by making deletions as shown by strike through and

35 insertions as shown by underline as follows:

36 § 1116. Sale or distribution of tobacco products or tobacco substitutes to minors. individuals under the age of 21

37 years.

38 (a) It shall be unlawful for any person to sell or distribute any tobacco product or tobacco substitute to another

39 person an individual who has not attained the age of 18 21 years or to purchase any tobacco product or tobacco substitute

40 on behalf of another such person, except that this section shall not apply to the parent or guardian of another such person.

41 an individual under 21 years of age.

42 (c) A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall demand proof of

43 age from a prospective purchaser or recipient of such products who is under 27 30 years of age.

44 Section 3. Amend § 1117, Title 11 of the Delaware Code by making deletions as shown by strike through and

45 insertions as shown by underline as follows:

46 § 1117. Notice.

47 A person engaged in the sale or distribution of tobacco products or tobacco substitutes shall post conspicuously at

48 each point of purchase and each tobacco vending machine a notice stating that selling tobacco products or tobacco

49 substitutes to anyone under 18 21 years of age is illegal, that the purchase of tobacco products or tobacco substitutes by

50 anyone under 18 21 years of age is illegal and that a violator is subject to fines. The notice shall also state that all persons

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51 selling tobacco products or tobacco substitutes are required, under law, to check the proof of age of any purchaser of

52 tobacco products or tobacco substitutes under the age of 27 30 years. The notice shall include a toll-free telephone number

53 to the Department of Safety and Homeland Security for persons to report unlawful sales of tobacco products or tobacco

54 substitutes. The owners of an establishment who fail to post a notice in compliance with this section shall be subject to a

55 fine of $100.

56 Section 4. Amend § 1118, Title 11 of the Delaware Code by making deletions as shown by strike through and

57 insertions as shown by underline as follows:

58 § 1118. Distribution of samples to minors. samples or coupons.

59 (a) It shall be unlawful for any person to distribute tobacco product or tobacco substitute samples or coupons for

60 subsequent receipt of free or discounted tobacco products or tobacco substitutes to another person an individual who has

61 not attained the age of 18 21 years.

62 Section 5. Amend § 1119, Title 11 of the Delaware Code by making deletions as shown by strike through and

63 insertions as shown by underline as follows:

64 § 1119. Distribution of cigarettes tobacco products or tobacco substitutes through vending machines.

65 (a) It shall be unlawful for any person to distribute or permit the distribution of tobacco products or tobacco

66 substitutes through the operation of a vending machine in a public place, except as provided in subsection (b) of this

67 section.

68 (b) Pursuant to subsection (a) of this section, a person may distribute or permit the distribution of tobacco products

69 or tobacco substitutes through the operation of a vending machine in a taproom, tavern, tobacco shop or in premises in

70 which a person an individual who has not attained the age of 18 21 years is prohibited by law from entering. A tobacco

71 vending machine must be operated a minimum of 25 feet from any entrance to the premises and must be directly visible to

72 the owner or supervisor of the premises.

73 (c) It shall be unlawful for any person who owns, operates or manages a business establishment where tobacco

74 products or tobacco substitutes are offered for sale over the counter at retail to maintain such products in any display

75 accessible to customers that is not under the control of a cashier or other employee. This prohibition shall not apply to

76 business establishments to which persons individuals under the age of 18 21 are not admitted unless accompanied by an

77 adult, tobacco vending machines as permitted under subsection (b) of this section, or tobacco stores. As used in this

78 subsection, "under the control" means customers cannot readily access the tobacco products or tobacco substitutes without

79 the assistance of a cashier or other employee. A display that holds tobacco products or tobacco substitutes behind locked

80 doors shall be constructed construed as under the control of a cashier or other employee.

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 81 Section 6. Amend § 1121, Title 11 of the Delaware Code by making deletions as shown by strike through and

82 insertions as shown by underline as follows:

83 § 1121. Penalties.

84 (a)(1) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119 § 1119,

85 or § 1120 of this title shall be regarding an individual who is under 18 years old is guilty of a violation and shall be is fined

86 $250 for the first offense offense, $500 for the second offense offense, and $1,000 for the third and all subsequent offenses.

87 (2) Notwithstanding any other provision of Delaware law, a person who violates § 1116, § 1118, § 1119, or §

88 1120 of this title regarding an individual who is at least age 18 years old but less than 21 years old is subject to a civil

89 penalty as follows:

90 a. For a first occurrence, fined $250.

91 b. For a second occurrence, fined $500.

92 c. For a third or subsequent occurrence, fined $1,000.

93 (b) Additionally, and notwithstanding any other provision of Delaware law, in imposing a penalty for a second,

94 third third, or other subsequent offense under this subpart, the court may order the Department of Finance to suspend the

95 defendant's license for sale of tobacco products, issued pursuant to under § 5307 of Title 30, for a period not to exceed 6

96 months. Upon the suspension of such license, the court shall advise the Department of Finance of the suspension in writing.

97 The holder of the license shall surrender the license to the Department of Finance and no refund of fees shall will be paid.

98 For purposes of this subpart, a subsequent offense is one that occurs within 12 months of a prior like offense.

99 Section 7. Amend § 1122, Title 11 of the Delaware Code by making deletions as shown by strike through and

100 insertions as shown by underline as follows:

101 § 1122. Affirmative defense.

102 In any prosecution for an offense under this subpart, it shall be an affirmative defense that the purchaser or

103 recipient of tobacco products or tobacco substitutes who had not reached the age of 18 21 years presented to the accused

104 proof of age which set forth information that would lead a reasonable person to believe that such individual was 18 21 years

105 of age or older.

106 Section 8. Amend § 1123, Title 11 of the Delaware Code by making deletions as shown by strike through and

107 insertions as shown by underline as follows:

108 § 1123. Liability of employer.

109 (a) If a sale or distribution of any tobacco product or tobacco substitute or coupon is made in violation of § 1116, §

110 1118, § 1119 or § 1119, or § 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of

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111 the establishment where the violation occurred shall be guilty of the violation and shall be subject to the fine only if the

112 retail licensee has received written notice of the provisions of §§ 1116 through 1121 of this title by the Department of

113 Safety and Homeland Security. For purposes of determining the liability of a person who owns or controls franchises or

114 business operations in multiple locations, for a second or subsequent violation of this subpart, each individual franchise or

115 business location shall be deemed a separate establishment.

116 (b) Notwithstanding any other provision of this subpart, in any prosecution for a violation of §§ 1116, 1118 and

117 1118, or 1120 of this title, the owner, proprietor, franchisee, store manager or other person in charge of the establishment

118 where the alleged violation occurred shall have an affirmative defense if such person or entity can establish that prior to the

119 date of the violation the person or entity:

120 (1) Had adopted Adopted and enforced a written policy against selling tobacco products or tobacco

121 substitutes to persons under 18 21 years of age;

122 (2) Had informed Informed its employees of the applicable laws regarding the sale of tobacco products or

123 tobacco substitutes to persons under 18 21 years of age;

124 (3) Required employees to sign a form indicating that they have been informed of and understand the written

125 policy required herein;

126 (4) Required employees to verify the age of tobacco product or tobacco substitute customers by means of

127 photographic identification; and

128 (5) Had established Established and enforced disciplinary sanctions for noncompliance.

129 (c) The affirmative defense established in subsection (b) of this section may be used by an owner, proprietor,

130 franchisee, store manager manager, or other person in charge of the establishment no more than twice 1 time at each

131 location within any 12-month 36 month period.

132 Section 9. Amend § 1124, Title 11 of the Delaware Code by making deletions as shown by strike through and

133 insertions as shown by underline as follows:

134 § 1124. Purchase or receipt of tobacco products or tobacco substitutes by minors. [Reserved.]

135 (a) It shall be unlawful for any person who has not attained the age of 18years to purchase a tobacco product or

136 tobacco substitute, to accept receipt of a sample, to exchange a coupon for a tobacco product or tobacco substitute, or to

137 present or offer to another person a purported proof of age which is false, fraudulent or not actually that person's own proof

138 of age, for the purpose of purchasing or receiving any tobacco product or tobacco substitute or redeeming a coupon for a

139 tobacco product or tobacco substitute.

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140 (b) A person who violates subsection (a) of this section shall be adjudged delinquent and shall for a first

141 adjudication be fined $50 or ordered to perform 25 hours of community service work, and for a second adjudication and for

142 all subsequent adjudications be fined $50 and ordered to perform 50 hours of community service work. A subsequent

143 adjudication of delinquency is one that occurs within 12 months of a prior like offense.

144 Section 10. Amend § 1125, Title 11 of the Delaware Code by making deletions as shown by strike through and

145 insertions as shown by underline as follows:

146 § 1125. Unannounced inspections; reporting; enforcement.

147 (b) Persons An individual under the age of 18 21 may be enlisted by the Department of Safety and Homeland

148 Security or its delegates to test compliance with and enforcement of §§ 1116-1120 and 1124 §§ 1116 through 1120 and §

149 1124 of this title, provided however, that such persons the individual may be used only under the direct supervision of the

150 Department of Public Safety, Safety and Homeland Security, its employees or delegates and only where written parental

151 consent has been provided. provided for an individual under the age of 18.

152 (c) Participation in the inspection and enforcement activities of this section by a person an individual under 18 21

153 years of age shall not constitute a violation of this subpart for the person individual under 18 21 years of age, and the

154 person individual under 18 21 years of age is immune from prosecution thereunder, or under any other provision of law

155 prohibiting the purchase of these products by a person an individual under 18 21 years of age.

156 (d) The Department of Safety and Homeland Security shall adopt and publish guidelines for the use of persons

157 individuals under 18 21 years of age in inspections conducted pursuant to under this section.

158 Section 11. Amend § 2908, Title 16 of the Delaware Code by making deletions as shown by strike through and

159 insertions as shown by underline as follows:

160 § 2908. Vapor establishments.

161 (b) Any vapor establishment permitted to have emissions produced by electronic smoking devices in such vapor

162 establishment pursuant to this section, and which permits such emissions, shall prohibit anyone under the age of 18 21 from

163 entering and shall display a sign at all entrances stating that no one under the age of 18 21 is allowed in such vapor

164 establishment.

165 Section 12. Amend § 5361, Title 30 of the Delaware Code by making deletions as shown by strike through and

166 insertions as shown by underline as follows:

167 § 5361. Definitions.

168 For purposes of this subchapter:

169 (1) "Adult" means a person who is at least the legal minimum purchase age.

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170 (6) "Legal minimum purchase age" is the minimum age at which an individual may legally purchase any

171 tobacco product in this State. State under § 1124 of Title 11.

172 (11) "Tobacco products" means 1 or more cigarettes, herbal cigarettes, bidis, chewing tobacco, powdered

173 tobacco, snuff or any other, noncigar or nonpipe tobacco product. a. “Tobacco product” means any of the following:

174 1. A product, including a cigarette, cigar, hookah, pipe tobacco, chewing tobacco, snuff, or snus, that

175 is all of the following:

176 A. Intended for human consumption or likely to be consumed, by any means, including

177 smoking, heating, chewing, absorbing, dissolving, inhaling, or ingesting.

178 B. Made from or derived from tobacco or that contains nicotine.

179 2. A vapor product.

180 3. A component or accessory used in the consumption of a tobacco product, including filters, rolling

181 papers, and pipes.

182 4. A liquid used in an electronic smoking device, including liquids that contain nicotine and liquids

183 that do not contain nicotine.

184 5. An electronic smoking device.

185 b. “Tobacco product” does not mean a drug, device, or combination product authorized for sale by the

186 United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 USCS §§

187 301 et seq.).

188 Section 13. Amend § 5363, Title 30 of the Delaware Code by making deletions as shown by strike through and

189 insertions as shown by underline as follows:

190 § 5363. Age verification requirements.

191 (a) No person shall mail, ship or otherwise deliver any tobacco product in connection with a delivery sale unless

192 prior to the 1st delivery sale to such consumer:

193 (1) Receives both a copy of a valid form of government identification showing date of birth to verify the

194 purchaser is age 18 21 years or over and an attestation from the purchaser certifying that the information on the

195 government identification truly and correctly identifies the purchaser and the purchaser's current address. Such

196 attestation shall also confirm:

197 a. That the prospective consumer understands that signing another person's name to such certification is

198 illegal;

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199 b. That the sale of tobacco products, including cigarettes, to individuals under the legal minimum

200 purchase age is illegal; and

201 c. That the purchase of tobacco products, including cigarettes, by individuals under the legal minimum

202 purchase age is illegal under the laws of this State;

203 (c) Any wholesale or retail seller of cigars or pipe tobacco shall affirm that the purchaser of said product is 18 21

204 years of age or older before the time of sale.

205 Section 14. Amend § 5365, Title 30 of the Delaware Code by making deletions as shown by strike through and

206 insertions as shown by underline as follows:

207 § 5365. Shipping requirements.

208 (a) Each person who mails, ships or otherwise delivers any a tobacco product product, as defined under § 5301 of

209 this title, in connection with a delivery sale shall become affixing agents as defined by under § 5301 of this title and shall be

210 eligible to receive commissions pursuant to under § 5318 of this title and further shall: title. Each person who mails, ships

211 or otherwise delivers a tobacco product, as defined under § 5361 of this title, must do all of the following:

212 (1) Include as part of the bill of lading or other shipping documents a clear and conspicuous statement

213 providing as follows: "Any Tobacco Product: Delaware Law Prohibits Shipping to Individuals Under 18, 21, and

214 Requires the Payment of all Applicable Taxes";

215 (2) Use a method of mailing, shipping or delivery that obligates the delivery service to require:

216 a. The consumer placing the purchase order for the delivery sale or another adult of legal minimum

217 purchase age residing at the consumer's address, to sign to accept delivery of the shipping container; and

218 b. Proof, in the form of a valid, government-issued identification bearing a photograph of the individual

219 who signs to accept delivery of the shipping container, demonstrating that the individual is either the addressee or

220 another adult of legal minimum purchase age residing at the consumer's address.

221 However, proof of the legal minimum purchase age shall be required only if such individual appears to be

222 under 27 30 years of age; and

223 (3) Provide to the delivery service retained for such delivery sale evidence of full compliance with § 5367 of

224 this title.

SYNOPSIS
This Act restricts access to tobacco products and tobacco substitutes to individuals under age 21 by doing all of the
following:
1. Prohibits sales of tobacco products or tobacco substitutes to individuals who are under 21.
2. Imposes a civil penalty for sales to individuals between the ages of 18 and 21.
3. Repeals the ability of a parent or guardian to purchase tobacco products or tobacco substitutes for a minor.

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 4. Revises the framework by which an employer may use an affirmative defense to the improper sale of tobacco
products or tobacco substitutes, aligning the affirmative defense with the minimum age increase.
5. Adopts best practices for enforcement measures by modifying the prohibition against the purchase of tobacco
products by minors.
6. Prohibits individuals under age 21 from entering vapor establishments.
This Act also makes technical corrections to conform existing law to the standards of the Delaware Legislative
Drafting Manual.
Author: Senator Townsend

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